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Wednesday, March 29, 2006

Flexing Fair Use

The Politics of Film: NYU's Free Culture's 2006 Film Remix Contest

Some of you may remember a hilarious film clip that circulated like a viral video on the Internet earlier this year. For those who missed out, Stanley Kubrick's 1980 classic horror film, The Shining, was transformed into a trailer for a touching feel-good comedy. In it, Jack Nicholson, usually the perfect pyschotic, embodies a struggling writer who falls for a widowed Shelly Duvall and her young son. With love and family, Nicholson casts off his writer's block, Duvall and boy find a father, and everyone is tearfully happy. All the while being played to Peter Gabriel's sickingly inspiring "Solsbury Hill."

The remix was an enormous sucess. Its creator, Ryan Ryang (a recent Columbia graduate, no less, with a double major in pyschology and film), had entered a film remix contest sponsered by the New York chapter of the Association of Independent Creative Editors. The contest asked participants to take any film and turn it into a new genre, such as from horror to comedy. Ryang won the contest and posted the clip on his modest blog. Unsuspecting of its popularity, Ryang was in for a surprise. In one week, the clip had been downloaded 12,000 times. Not only that, but it had circulated on major blogs and film websites. Ryang was even scouted by a Hollywood film agent. With a five minute trailer, and minimal production and distribution costs, Ryang had achieved the envious accolades of the film industry: fame and employment. For those curious, and with a sense of humor, check it out below:

At the time, the story was spun as one of success. The NYTimes covered it triumphantly: the creative college film major makes it big against the mainstream currents, riding only on his talent and the Internet. But others have seen deeper and more troubling implications in Ryang's story, implications regarding the future of media and its relationship to copyright.

Enter the concept of fair use. In the world of copyright, fair use is the idea that there are reasonable limitations to the breadth and reach of copyright. That is to say, while Kubrick (or more likely the studio that produced him) may own exclusive rights to The Shining, this does not prevent people such as Ryang from using The Shining freely for the purpose of parody and/or criticism. Fair use also allows for the reproduction of works for the purposes of commentary, news and reporting, teaching, scholarship, and research. This is why a college film professor can screen a movie without hassle, or why a documentarian can insert a film clip without worry. Or so we hope.

Fair use no longer stands as robustly as it was once believed it could, due to two heavy pieces legislation enacted in the last decade. Much of it, unsurprisingly, in reaction to the ways in which digital technology and the Internet has facilitated the possibility of infinite reproduction and distribution of any work capable of being digitized. For example, when a teacher purchases a DVD of Kill Bill, and wants to burn it onto his computer in order to make a series of short film clips for his class that illustrate the influence of Japanese anime on American cinema, he is participating in the principle of fair use. But according to something like the DMCA (which we have covered before here, or here), this professor is breaking the law. (For those of us unfamiliar with the DMCA, it makes it illegal to circumvent a copy-protection measure on copyrighted work. This would apply to almost every DVD, and some CDs.)

A helpful metaphor is to consider digital technology (as only one example of a medium for copyrighted works) as a type of tool. Let's pick the crowbar. In most instances of day to day life, using a crowbar is perfectly legal. A volunteer might need it to gut a house in New Orleans. Or, a grandson may need it to open a family heirloom chest. This does not mean, however, that the crowbar can be used illegally. A thief could use a crowbar to break into a building. Legislation like the DMCA makes the tool illegal, when in fact, it is certain uses of the tool which are. By outlawing the crowbar, and not certain violating acts that involve it, the law has effectively limited other productive and helpful ways in which the tool can be used.

This is why we need to flex the princple of fair use. Copyright law is challenging the way we interact and use material creatively. But we still have the means and the creative power to actively resist the future implications of the DMCA. Ryang's short film is an excellent examle of this. Which is precisely why FreeCulture NYU - a student group committed to copyright issues - has decided to hold its own film remix contest this April. The group invites anyone in the world to take a trilogy (The Matrix, Star Wars, Harry Potter, or Lord of the Rings) and remix it into a five to eight minute parody film. They promise to screen the winning remixes in real life at the end of April, 2006. For the full details (and much more legal history), check out their page here. Is anyone up for the challenge?(Photo Credit: Wikipedia; YouTube; Minhembio.com; Yatpay.net; Fred Benenson)

13 Comments:

Great post, friend. This is really important. Rights clearance costs for stills, music and archival footage is completely insane. Check out Peter Jaszi and Pat Aufderheide's recent study on fair use practices in independent documentary filmmaking. http://www.centerforsocialmedia.org/rock/finalreport.htm

A shocking example involves a canonical documentary on American racial histories and the Civil Rights Movement, Eyes on the Prize, owned by any legitimate American school library. However, due to the film's heavy saturation with archival footage and images, its licenses were extremely expensive. The filmmakers could only afford temporally limited clearance contracts. Some lasted for up to ten years. However, after a few years when the first license expired, it became illegal to commercially distribute Eyes on the Prize. The best film documentation of the Civil Rights Movement, which has proven itself repeatedly as a vital education tool, now exists scattered across the country on VHS in random school libraries. VHS tapes don't last very long. Soon, they will stop playing. It is way too expensive for the filmmakers to relicense all that archival footage. Unless copyright and fair use undergo serious reform SOON, Eyes on the Prize will vanish. So will many other films that have undergone similar predicaments. Not to mention the important projects that copyright intimidates their prospective authors from attempting to create.

Wow, I did not know that. I know you're writing on fair use, but if you ever want to bring some of your work/writing/ideas onto 2nd Law, I'm sure it would be appreciated.

Just yesterday, the NYTimes had an article about how the fashion industry wants to start creating rights for certain designs, in order to prevent knock-offs from occuring. NY Times.

I was absolutely floored. The entire idea seemed so ridiculous to me, especially when I thought about how much the fashion industry marks up for their goods.

In life in general, therefore, the notion of fair use is becoming obsolete. People don't know, in my opinion, that it exists for them to exercise (I think it's because they're too scared. The whole campaign of "piracy" with file-sharing was a great tool in that regard). I think your Civil Rights example (and yes, shocking) is fantastic, because not only will we lose a fantastic documentary, but we will lose footage from our cultural memory. And this memory is important to maintain, partly for pride, but also partly to prevent people from forgetting where (and how difficult) it was to achieve their rights. This might sound bombastic, but this is precisely why the fight for fair use is much more than a fight against copyright.

To me the issue is about the inequitable valuation of patterns. Sadly, the patterns of individual minds are not yet valued in the same way that objectified products of those minds are.

If a corporation intentionally and commercially modifies a population's conscious patterns with particular ideas and images, fair use is the least they can offer in the way of compensation for this unauthorized invasion of our pristine subjectivity.

If someone owns Mickey Mouse, then I own the rights to my own blessed state of MickeyMouselessness which is destroyed everytime that pattern is flashed in front of my eyes. Who is protecting my rights?

It's interesting also to think of the filmmakers and artists as creating this absurd rights clearance climate. When interviewed, most them defended the status of copyright and their deprivation of fair use rights. I guess they have invested so much time and energy in rights clearance, and now own so many licenses, they have to justify it to themselves to a certain degree. It's sad because, yes, Michael Moore can afford to clear all of his archival material, but that doesn't leave much room for non-Michael Moores in the industry (no fat joke intended).

Yes, I suppose there should be a word for this new 'There is no Metallica Claus' revelation. Something German perhaps. I think there is a lot wrapped up in being successful as an artist and being taken seriously by the 'suits'. Plus it's such a muddled confluence of issues - ego, art, ideology, popularity, money...very uncomfortable territory for the contemporary artist. At this point it seems like everyone is just looking to the herd for cues.

That NYT thing is absolutely ridiculous. As far as Juicy Couture goes, I seriously do not understand how a someone who designs luxury sweatsuits for a living can think that their creativity is being stifled or stolen. Aside from the logo, which is already protected, what creativity is involved here?!

Maggie, it's funny... working at the library, so many people come to rent "Eyes on the Prize" that I have occasionally wondered why we don't have multiple copies as we do with most movies which are shown in multiple classes. Now I know why. That is quite sad.

Igferatu, I see what you are saying (in your first comment) about the pyschology behind mainstream culture. But I think you're skipping an essential step. You say that fair use is "the least" we deserve. True. I would love learn how we can expand our rights as consumers or how to prevent ourselves from becoming passive recipients of mainstream culture. But my greater point, and the point I hope will inspire you, is that even our minimal so-called rights of fair use are being attacked. We can hardly move forward in thrawting Micky Mouse if our basic necessities of how to use culture and appropriate it for ourselves are not being provided or protected.

Oh, I completely agree with you Thessaly. I was just trying to say that behind all of these 'Ministry of Truth' kinds of abuses is a core belief system which honors only the transmitting half of the semantic equation. I think the winnable battle is a philosophical one - establishing 21st century legal principles based on the post-material, post-empirical realities of our digital age. I suppose there are political solutions to try - incorporate various public assets or create investment funds which pay for lawsuits against enemies of the public interest. It's a tough sell though.

Good post, but I disagree with your take on fashion copyrighting. As a designer, I would be pissed if a company copied one of my products, especially if the construction of the copy were inferior, and began producing it in huge quantities and profiting without giving me credit. This is basic plagiarism, and I don't think trying to stop it violates the concept of fair use. Fair use in this case would be an individual copying the garment for personal use, or riffing on it in some way, as long as his or her own creativity was what carried the piece- eg. the Shining trailer.

Fashion pricing is definitely out of control, and I think the industry in general needs to be restructured, but claiming that designers shouldn't be able to go after plagiarists who are profiting from their work just because the designers make a lot of money already may be satisfyingly fair, but isn't ethically defensible.

Joey, you bring up a good point. Copying someone else's work without contributing anything to it or transforming it violates copyright law. I think a major fair use debate centers around authors' abuses of the status of copyright to "protect" their work from theft and piracy. Designers exaggerate cases of plagiarism in order to promote their economic interests, even when these interests deprive so-called "pirates" of their first amendment rights.

It comes down to a catch 22: if you can afford to defend your fair use rights, you would have had the money to clear them in the first place. The problem is not designers defending their business from competitive plagiarism. Rather, too many ambiguities surrounding the status of fair use which rights owners exploit to promote their personal financial interests in ways protected neither by copyright law nor by the constitution.

Also, Eyes on the Prize update: I just found a fairy godmother has appeared out of thin air and funded the relicensing of the film's extensive archival footage. The rights are in the process of being cleared as I type! It's great how well it worked out in this example. Too bad about all the other less fortunate projects...

Joey - I see what you're saying, and I think that there needs to be incentives for people to want to make designs without their ideas being "stolen", but I just don't believe that the fashion industry is really approaching this with a level head. First, as the article points out, clothing is considered foremost an utilitarian item, and therefore not necessarily applicable to trademark or copyright. Second, if we were to designate clothing as some artistic expression, where would we draw the line? How do we distinguish the difference between inspiration and piracy? Between trends and copying? I think the fashion industry is behaving with entitlement, which I believe has been fueled by the fact that fair use has been abused and copyright has become far too bloated.

I agree that the fashion industry may have been emboldened by the current saliency of piracy/ copyright issues, but an increased awareness and appreciation of design among Americans is probably responsible as well. I don't think the utilitarian origin of clothing is relevant here: I'd argue that a cars, laptops, and a cell phones (designs that are clearly copyrighted) are far more utilitarian products than a Dior gown. The value of luxury clothing is based on its design, not its ability to protect the user from the elements. If I'm understanding it correctly, the utility argument comes from the fear that if all clothing becomes expensive, people could be deprived of an essential good. In this age of segmented marketing, the availability of thousand-dollar garments hasn't hurt the availability of inexpensive, durable clothing whose value comes from its ability to keep the user warm, and I can't see how the copyrighting of patterns could change this.

Again, I'm only talking about protecting designs from large-scale commercial plagiarism. I would be completely against a designer going after an individual for copying a garment for personal use- this is clearly greed on the designer’s part. I can see how this could get prickly though- imagine a band or record company “copyrighting” a style of music.